Tuesday, December 8, 2009

All Over But The Mourning

So he's dead.

Do you feel better now?

The legal wrangling is over. A last minute delay was resolved. Oh, sure it took them a half hour to get him intubated, but by the standards of Ohio, the state that builds bathroom breaks into executions, thirty minutes is hardly worth mentioning.

Defiant to the end, Ken Biros refused to demonstrate that he's the monster they say. His last words:

Now I am paroled to my Father in heaven, and I will spend all my holidays with my Lord and Savior. Peace be with you.

The swine.

This one was special, of course, as if they aren't all. Biros was the first victim of a one-drug system. A single, massive dose of thiopentol. He took about 10 minutes to die. They didn't need to try out the intramuscular back-up procedure.

So he's dead.

But we can't let it end there.

First, the hits keep coming. Romell Broom, the man they couldn't kill, has a hearing before Judge Frost tomorrow as they pursue the issue of whether Ohio can take another crack at murdering him. Abdullah Sharif Kaazim Mahdi is to be murdered in January. Additional murders are scheduled in February, March, April, May, and June. Expect more to be scheduled for July, August, and on into 2016 or so.

Second, the Judge knew better. Here's what Judge Frost said yesterday when he found himself without any law that would allow him to stop today's killing. There is, he said,

an unfortunate but soon to be obvious truth about today’s decision: Ultimately, Biros’ failure to obtain a temporary restraining order has perhaps less to do with the merits of his case or the substantive law involved than it does with the procedural and pragmatic realities that have boxed him into an expedited track toward execution under a fledgling protocol.

Essentially, he said, the state's lawyers successfully scammed the system to ensure that Biros wouldn't have the chance to make his case, so that he could be killed by this new system without a fair chance to show that he shouldn't have been. The substance of Judge Frost's conclusion is worth reprinting in full.

The Court must conclude, based on the evidence before the Court and the applicable law, that Biros is not entitled to a stay of execution because he has failed to demonstrate a strong likelihood of success on the merits of his claims. This is not to say that any of the various plaintiffs involved in this litigation are incapable of ultimately prevailing in this litigation. Ohio’s post-November 30, 2009 execution system continues to be replete with inherent flaws that raise profound concerns and present unnecessary risks, even if it appears unlikely that Biros can, at this time, demonstrate that those risks rise to the level of violating the United States Constitution. Thus, although the fact that the evidence at this stage of the litigation does not present a likelihood of Biros prevailing on his claim of a constitutional violation proves dispositive of his request for a stay of execution, it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practices rise to the level of constitutional error.

As before, today’s decision therefore neither holds that Ohio’s execution protocol is constitutional nor unconstitutional. Rather, today’s decision reflects only that at this juncture, Biros has not met his burden of persuading this Court that he is substantially likely to prove unconstitutionality.

Several additional comments are warranted. As this Court has previously noted, Defendants are charged with carrying out humane and constitutional executions and not with simply prevailing in litigation. Director Collins testified in March 2009 that the ultimate goal is for Ohio to be as humane as possible and as professional as possible in carrying out its lawful executions. But Collins also testified that he believes that the procedures then in place were as humane and the best they could be. He was incorrect. To its shame, the State of Ohio then proceeded to depart from its protocol in an effort to execute Romell Broom. Following that failed execution, the State, to its credit, sought to implement a new protocol that eliminated some but not all of the issues surrounding the former protocol. This is a commendable act even if the conduct of various state actors in litigating this case and working on the new protocol was arguably less than commendable.

It is beyond debate that there is no legal question as to whether the State of Ohio can execute Kenneth Biros. It can. The relevant questions that the United States Constitution requires be asked are when and how. Too often a layperson will hear of litigation such as this case and be offended, applying a rationale derived from a biblical understanding of justice. But the Constitution neither endorses nor tolerates an eye-for-an-eye, suffering-for-suffering approach to executions. Rather, the Constitution upon which this country is founded protects all citizens, even the worst among the citizenry who have engaged in the most reprehensible of acts. In this context, the broad protections of the Constitution therefore turn a blind eye to the individual facts of the underlying crime and instead focus on rights, even the rights of those who gave their victims no such analogous consideration. Such fundamental fairness in application must inform cases like the one before this Court today, animating the proceedings so that justice, however often slow, is ultimately done. To accept less would be to diminish the Constitution.

It is arguable that today’s proceeding turns so greatly on the results of procedure and unintended consequences resulting from the acts by the parties and the courts that the notion of fundamental fairness is weakened. The risk is that when form is elevated over substance, the Constitution’s concerns are nearly relegated to secondhand considerations behind burden recognition and tactical strategy. Cases should be decided on the merits when those merits are presented to the courts–and the hope is that no court at any level will inadvertently preclude discovery of the merits. It is not clear whether Biros could discover and presents facts evincing a viable claim that would enable him to prevail in this litigation so that Ohio would need to find another method by which to execute him. It is clear that the law has in part divested Biros of select opportunities to make the attempt.

So he's dead.

We can all rest easier.

And they got it done more-or-less on time this round. And before Christmas.

1 comment:

As an Ohio Death Row family member, disappointment in Ohio's leaders doesn't even begin to cover how I am feeling. But then I am also a Maricopa county resident so disappointment seems to be had all over. After reading some of the news articles since this execution...how can anyone applaud the death of another human...

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
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